The 2004 presidential election was
mired in controversy all over the country. Candidate
Kerry’s legion of volunteer lawyers was ready to fight
anticipated election fraud. Serious challenges were defused
when Kerry conceded the election in the early morning of
November 3, 2004. Failing to recognize that candidates
cannot concede the votes of citizens, the news media and
political parties called it a night.

Ohio was ground zero
for charges of election fraud. These are ably
detailed in several articles and won’t be repeated here.
One post election event is worth mentioning. The March 13,
2007 Toledo Blade ran this headline at the end of a
major trial in Cleveland:

The tale of
the lost ballots and destroyed evidence begins with a law
suit brought by citizens against Ohio officials: King
Lincoln Bronzeville Neighborhood Association (KLBNA) v.
Blackwell. The suit charges Blackwell and other Ohio
officials with: “election fraud, vote dilution, vote
suppression, recount fraud and other violations.”

Specific charges include: “withholding unused
(unvoted) ballots” in response to legitimate requests to
review these ballots; violation of Ohio law by “breaks in
the bipartisan chain of custody;” and “tampering with
ballots” by marking Bush’s name on ballots with no
presidential vote and switching ballots from Kerry to a
third party candidate. Amended Complaint October 9, 2006

In
order to prove their case, plaintiff’s counsel, noted
voting rights attorney Cliff Arnebeck, needed all of the
ballots from the 2004 election. Federal law stipulates a 22
month retention period for all federal elections, as does
Ohio law for state elections. The presiding judge in the
case, Algenon L. Marbley, issued a court
order on September 6, 2006 extending the retention
requirements for an additional 12 months. Blackwell was
instructed to distribute the order to Ohio’s boards of
elections.

The Judge then ordered
that the ballots be turned over to the new Secretary of
State, Democrat Jennifer Brunner on April 7, 2007. Brunner
sent a request out for the ballot evidence two days
later

When the Ohio Secretary of State sent requests for
delivery of the ballots, 56 of Ohio’s 88 counties replied
that they no longer had some or all of the ballots
requested. Only 41 bothered to provide an explanatory
letter as to the missing ballots. Fifteen counties offered
no reason at all for noncompliance. Counties failing to
return complete sets of ballots accounted for a majority of
Ohio’s 2004 presidential votes.

Federal and State
Law on Preserving BallotsIn the section
on “Federal Election Records,” federal law (United
States Code) clearly states the rule:

Section 1974. Retention and
preservation of records and papers by officers of elections;
deposit with custodian; penalty for violation:

Every
officer of election shall retain and preserve (“records
and papers”) for a period of twenty-two months from the
date of any general, special, or primary election (involving
federal candidates)

Ohio
law requires that “the board shall carefully preserve
all ballots prepared and provided by it for use in that
election, whether used or unused, for twenty-two months
after the day of the election.”

July 2004 Secretary of
State Blackwell issued a reminder to all of the county
boards regarding the 22 month retention standard for
election records.

********

Through the Secretary of State, a federal judge, and the
lead attorney in a law suit, the 88 counties received
multiple notices that they were to retain all ballots from
the 2004 election for federal office, president in
particular, for at least 22 months and after that “until
such time as otherwise instructed by the
court.”

********

But look
what happened.

Destruction of Ballot Evidence

The
five types of ballots requested were: (1) voted; (2)
unvoted; (3) absentee; (4) provisional; and (5) spoiled.
All ballots are required to determine if fraud took place.
Unvoted ballots are no exception. There are several key
points to remember when reading the explanatory letters from
the boards:

Federal law requires retaining all
“records and papers” for 22 months.

Ohio
law requires retention of “all ballots” for a similar
period.

Federal and Ohio laws offer no
exception for unvoted ballots.

There is an
assumed standard of care for ballots that includes concerns
like chain of custody and secure and safe
storage.

The first letter in the collection is
from the Ashtabula County Prosecuting Attorney. Why would
the prosecuting attorney write this letter when all the
other explanatory letters were written by election board
members? Perhaps someone in that county understood the
gravity of destruction of evidence and the penalties
involved.

Unfortunately, the actual ballot
cards were inadvertently discarded and destroyed by the
Ashtabula County Board of Elections just prior to the
receipt by the Board of Judge Marbley’s Order and
subsequent directive to your office.

Thomas Sartini,
Prosecuting Attorney, Ashtabula County Apr. 16,
2007

There is a clear intent
to use the term inadvertently or somehow imply unintentional
destruction of ballots in many of the letters. Webster’s
defines inadvertent as: 1: not focusing the mind on a
matter: inattentive. 2: unintentional.

In Athens
County, for example, the board said “they feel that these
unvoted ballots were inadvertently discarded.” These
must have been very special feelings since they were
powerful enough to intuit inadvertent discarding of
ballot evidence. No further explanation was
offered.

On April 11, 2007, Clermont said that they didn’t know
where the ballot evidence was but that “no one remembers
specifically discarding the ballots.”

Like Clermont,
Brown County couldn’t find all the ballots but they were
sure that they “were not intentionally destroyed.”
Guernsey County says that unvoted ballots
“were destroyed in error due to the county maintenance
worker.” This is inadvertentdestruction of
evidence by proxy. The janitor did it. Several
counties blamed retired elections officials without
indicating any effort to contact those officials for an
explanation.

********

As you look at
the examples of ballot evidence destruction, keep in mind
that destruction of ballots is the one way to be 100%
certain that the charges in KLBNA v. Blackwell are never
verified. Ironically, that destruction of 2004 ballots
seems to break the very same laws charged in the civil
action.

********

Allen County had a
“migrating water” problem that flooded their vault
holding the ballots. This caused them to be “compromised
by water damage and subsequently destroyed.” The dry
ballots were also lost when a contractor threw them out,
inadvertently no doubt. The ballot wipe out in Allen
combined both inadvertent destruction (of damaged
ballots) and destruction by proxy (all the rest).

Let’s
look at two of Ohio’s largest voting districts, those
including Cincinnati and Cleveland.

Cincinnati is part of
Hamilton County, population 823,000. Election board
director John Williams had this to say:

In
January of ’06, the staff was engaged in a sizable effort
to make room for the Hart voting system. To the best of my
knowledge, the above ballots (unvoted precinct ballots) were
inadvertently shredded between January 19th and 26th of
‘06 in an effort to make room for the new Hart voting
system.

John M. Williams, Director of Elections,
Hamilton County Board of Elections, May 16,
2007

So Hamilton had to make room for new voting
machines but they shredded the ballots inadvertently;
in which case the given reason for the destruction of
evidence had nothing to do with the anticipation of new
machines since it was inadvertent, “not focusing
the mind on matter” or “unintentional,” meaning the
absence of specific intent, i.e., moving them to make way
for new machines.

Or possibly Hamilton destroyed the
ballot for an unspecified reason and found that the
shredding made room for the new voting machines; in which
case they confused theunspecified reasonwith
inadvertent shredding and used the new machine
arrival as a convenient excuse.

Or possibly the staff of
the board of elections was so concerned with clearing up
storage space that they failed to notice the ballots, the
key product of their role as election workers, and set them
aside resulting in the shredding; only later rationalizing
their negligence with the excuse of needing for extra space
for e-voting machines.

Is there a fourth option? The
statement by Hamilton as written makes no sense at all.
What really happened in this huge voting district?

Hamilton County could produce a receipt for the
inadvertent ballot shredding. That might provide
clues that would make sense out of their nonsensical letter.
But as we will see shortly, before even investigating,
Secretary of State Brunner and Attorney General Dann applied
a benign motive for what seem to be blatant violations of
federal and state law.

Cuyahoga County, population 1.3 million,
was unable to determine how many unvoted ballots it had in
its possession. It took records for “ballots ordered”
for 2004 and subtracted the total ballots cast, assuming the
difference was sufficient instead of actually counting the
unused ballots.

The unused ballots
are of grave importance for Cuyahoga. The county was the
site of a wide range of election problems. One would think
they’d want to explain why they needed 1,135,265 ballots
for 1,007,187 registered voters when turnout
is rarely exceeds 60%. That’s a lot of extra ballots
floating around in a county that produced a “rigged”
presidential recount. There were several other counties
with large quantities of extra ballots.

Cuyahoga County
acting elections director Jane Platten was so concerned
about the state of the ballots delivered that she amended
her certification statement to the Secretary of
State.

Platten wrote in an email
regarding the issue on April 17, 2007: “I did not know
the chain of custody and storage of those ballots since the
November 2004 election. None of the persons responsible for
those ballots … work at the BOE any longer.” (Full Collection, p. 225) Did those
persons cease to exist altogether? Surely they could have
been reached by phone, paid a visit, or asked for a sworn
statement or deposition. Was any such effort made?
Apparently not.

Platten had no doubt seen this report on
the board’s activities dated January 17, 2007, three
months before her amended certification above. The Center
for Election Integrity at Cleveland State University did a
study of the board and reported the
following:

This
finding is presented as an understatement when it should be
a headline. The essence of the gross security lapse in
Cuyahoga is obvious: just about anyone associated with the
board could have gained access to the 2004 ballots. Both
ballot security and chain of custody were compromised. How
would anyone know that the ballots delivered to the
Secretary of State were the actual 2004 ballots with so many
people allowed unsupervised access over time? Inefficiency
and poor record keeping on the part of public officials
trump the search for justice.

What regard do you have for
ballots when you fail to produce them and then don’t even
bother to explain why? Fifteen counties never bothered to
explain their failure to obey federal law and a federal
court order. For those who wrote letters, why not simply
say “we’re very sorry to report…” or “we deeply
regret to inform you?” How many expressed regrets? There
were only two or three by my count.

Did any of those who
had already destroyed ballots by the time of Judge
Marbley’s order bother to write the Secretary of State
explaining that fact when they received the order? If not,
why not? Did any of those who had already destroyed ballots
after the 22 month federal retention period but prior to the
request for delivery in April 2007 bother to report this to
the Secretary of State? If not, why not?

Reaction by
Ohio’s Secretary of State and Attorney
GeneralBoth Attorney General Dann and
Secretary of State Brunner made clear promises to pursue
2004 election fraud investigations during their campaigns.
Their words on this subject are well documented. Once
elected and faced with the massive destruction of evidence
from the 2004 election, they may have experienced an
inadvertent memory lapse.

2006 general election
winner, Secretary of State Jennifer Brunner (D), was quick
to respond to the destruction of evidence. The Cincinnati
Enquirer of August 11, 2007 reported Brunner’s
remarks: “If I had evidence of a cover-up, I would
investigate. For me, the bigger question in 2004 was how
many people were prevented from voting (something) you
can’t quantify?” Attorney General Marc Dann (D), also
elected in 2006, responded quickly by seconding Brunner’s
position. So much for campaign
promises.

********

While the two
Democratic officials were quick to absolve those who
destroyed evidence, both have refused to meet with voting
rights activists to receive and discuss
extensive data and analysis that supports election fraud in
the 2004 presidential election.

********

How Do We Interpret
the Destruction of Ballot Evidence?There
are a number of ways to look at the vanished ballots.
Let’s consider two broad approaches.

This could just be
a series of coincidences Explanations for the missing
ballots include: (a) inadvertent shredding or other
forms of unintended ballot destruction; (b) aggressive
maintenance personnel removing what was taken to be trash;
(c) retired officials blamed by their replacements; (d)
ignorance of the law; and (e) this is just the way we do
things. The benign interpretation of the destruction
or loss of evidence would accept each and every explanation
is accurate. Furthermore, the benign interpretation would
also include an assignment of coincidence to 56 of 88
counties performing these acts, many in areas where charges
of election irregularities were raised. The explanation
might go something like
this:

We’ve got a loose patchwork
of election boards who’ve become accustomed to doing
things their own way. The summary sheets are sufficient
since there was no ill intent. It’s not really
destruction of evidence. It’s just what happened. Nothing
to worry about here. Lets move on to a new election cycle in
2008.

A less benign interpretation is
expressed in the following
analogy:

Your neighbor is charged
with assaulting you and stealing all your money. The
neighbor vigorously denies this. The police know that the
neighbor has a security video camera and taping system that
covers his front yard, the scene of the assault. The police
tell the neighbor to preserve the tape and bring it down
town to police headquarters. The neighbor sends the police
a fax saying, “I no longer have the tape. I spilled
coffee on it and then my cleaning crew threw it out. As
proof of my innocence here is the tape summary I compiled
which says: Summary of video - No unusual events noted.
“Now imagine how you would react
when the police chief appeared on television and announced,
“I’m sure that the destruction of evidence was
unintended. If I thought there was a crime, I’d conduct
an investigation. There’s no reason to think a crime took
place. Besides, I’m more interested in car theft
anyway.”

The explanations shouldn’t
matter at all. The federal statutes are clear. Ballots are
to be preserved for 22 months following elections. Those
counties that destroyed them prior to that deadline violated
both federal and state statutes and should be considered for
prosecution under federal and state law. Ignorance of the
law, particularly for public officials, is no excuse.

The court order for ballot preservation was delivered by
the plaintiff’s attorney, by the Secretary of State, and
was the subject of media coverage. The counties who still
had ballots after the federal deadline had adequate notice
to retain them from plaintiff’s attorney. County
personnel should be held accountable to federal and state
laws on ballot preservation and destruction of evidence.

All counties had a responsibility to know and obey
federal law and the court order. All counties had a
responsibility to store safely and with care all of the 2004
ballots and any other ballots they had in their possession.
All counties had a responsibility to have a chain of custody
procedure in place to assure that the ballots stored could
be accounted for as the original set from the election.
This is standard operating procedure for any organization.
Why wasn’t this done?

Will there be justice and
accountability? Will the possible theft of a presidential
election cause the newly elected Secretary of State and
Attorney General to reconsider their quick dismissal of
destruction of election evidence? Will the federal courts
take note and provide a consequence for those who
inadvertently or intentionally destroyed
evidence?

America has been robbed of its
history here. The public has a right to know the true
outcome of the 2004 election, and to have its laws about
preservation of critical records honored.

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